State v. Cyty

Certainly it would be misconduct on the part of a district attorney to willfully misstate evidence to the jury, and particularly so to tell the jury that a defendant had made statements to him unless such statements were actually in evidence in the case. But I do not understand this to be the case here. "As he told me to-day in talking to me, he gloried in the fact that he would use a gun," was not a very happy way of telling the jury that the appellant testified to that on cross-examination, or to anything else from which such an inference could be legitimately drawn in argument. But the trial court understood the district attorney to be stating his conclusion from the testimony given by the appellant. When counsel for the appellant objected to the district attorney's remarks the court said: "That is his conclusion from what the testimony was. The jury are to determine what the facts are." As the trial court understood the district attorney in that way and expressed his belief before the jury, telling them that they were judges of the facts, it is not likely that the jury thought that the district attorney meant that the appellant had made those statements to him off the stand.

A reading of the appellant's testimony, however, reveals that he did not say "he gloried in the fact that he would use a gun," nor does it reveal anything which can be said to fairly bear that inference. What his demeanor on the stand may have indicated in this respect, as the district attorney contends, I, of course, cannot say, but the point is as to what he said or what might be fairly deduced from what he said. I am not prepared to say, however, that the district attorney did not honestly err in his argument. I do not believe that any prejudice could have been caused in the minds of the jury by it. The jury heard the appellant's testimony on cross-examination, and the court promptly told them that the district attorney's remarks were his own conclusions and that they were to determine the facts. Moreover, the court instructed the jury in writing that it was *Page 264 their duty to determine what the facts in the case were from the evidence, and not from the statements of the judge, nor from the statements of any attorney during the progress of the trial, or in his argument. Under these circumstances, the probability of any prejudice having been caused in the minds of the jury against the appellant by the remarks of the district attorney is very remote.

During the cross-examination of the appellant the district attorney asked him the following question: "Did you ever use a gun before?"

Counsel for appellant objected to the question and requested the court to admonish the district attorney not to ask the appellant such questions. The objection was sustained. It is insisted that the question was highly prejudicial to the appellant, and asked for the purpose of influencing the jury against him. The district attorney contends, in view of the crime charged in which an intent to kill is an essential element, and the testimony of the appellant as to the several guns he had on the premises, and how they were disposed about the premises, and his testimony to the effect that he did not intend to kill the complaining witness, the question was a proper one as calculated to elicit testimony bearing upon his intent, and should have been answered. Be that as it may, the question was apparently asked in good faith by the district attorney. The question was not asked in an assertive form. It did not assume that the appellant had used a gun on a man before, and when the objection was sustained, the district attorney desisted from asking any questions of a similar character. Furthermore, the court in its written instructions told the jury to disregard all evidence offered that had been excluded, all evidence that had been stricken out, and all questions to which objections had been sustained. It is therefore difficult to perceive how the jury could have been influenced in any way by it.

Appellant objects to the following instruction given by the court:

"If a person kill another in self-defense, it must *Page 265 appear that the danger was so urgent and pressing that, in order to save his own life, or prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."

The instruction is in the exact language of section 6402 of the Revised Laws relating to self-defense in homicide cases. As the appellant testified that he fired the shot which wounded the complaining witness in self-defense, the instruction was properly given. Certainly a court may give to a jury an instruction in the precise language of a statute applicable to the case on trial. If counsel for appellant thought as he now contends, that the statute is misleading and the instruction consequently so in not informing the jury that the appearance of danger to the defendant as a reasonable man must have been urgent and pressing, he should have drawn and requested an instruction remedying the defect claimed. State v. Switzer, 38 Nev. 110, 145 P. 925. He did not adopt this course. On the contrary, it appears from the record that he objected to the giving of an instruction embodying the very matters in which he claims the instruction was deficient, and as a consequence of such objection the proposed instruction was withdrawn. However, on application of appellant's counsel the court gave several other instructions on the law of self-defense, and, considering all of these instructions together the jury was fairly instructed as to the law on this phase of the case.

It is said in the prevailing opinion that the attorney for the appellant objected to this instruction in the trial court upon the ground that it is applicable only in a case wherein the crime of murder is charged, and not in a case wherein an assault with intent to kill is charged. It is true he made such objection, but he does not urge it here. No mention of this ground is made in his brief. This change of ground is doubtless due to the fact that the court at the request of counsel for appellant gave *Page 266 several other instructions on the law of self-defense in homicide cases. The giving of such instructions was proper, for, as stated by the trial court when settling instructions, the law of self-defense in a case of an assault with intent to kill is the same as in a homicide case.

It is insisted by counsel for appellant that the court committed prejudicial error in giving the following instruction:

"It shall be unlawful for any person in this state, except police officers or persons while employed upon or traveling upon trains, stages or other public conveyances, to wear, carry or have concealed upon his person, in any town, city or village, any dirk-knife, pistol, sword in case, slung-shot, and sand-club, metal knuckles, or other dangerous weapon, without first obtaining permission from the board of county commissioners, attested by its clerk, of the county in which such concealed weapon shall be carried."

The instruction is in the exact language of section 6568 defining the unlawful carrying of concealed weapons. It is insisted that the instruction was erroneously given for the reason that, as appellant was not charged with the offense of unlawfully carrying concealed weapons, or with any crime within which such an offense was necessarily included, it was not applicable to the issues raised by the information and appellant's plea of not guilty. It is also contended that the instruction is erroneous in that it assumes that the appellant was guilty of unlawfully carrying a concealed weapon. There is no such assumption. The instruction merely defines the offense. It is true that appellant was not charged with such an offense, and it must be conceded that such an offense is not necessarily included in the crime of assault with intent to kill, but it does not necessarily follow that the instruction was not applicable to evidence bearing upon appellant's guilt of the crime charged. If there was evidence in the case tending to prove that appellant was unlawfully carrying a concealed weapon at the time of the commission of the *Page 267 offense for which he was tried, and such unlawful carrying had any tendency to prove his guilt of the offense charged, the instruction would have been applicable and properly given. The mere fact that evidence proves or tends to prove a defendant guilty of another offense is not for that reason alone objectionable. The test is, has it any bearing upon the guilt of the defendant as to the crime charged? State v. Roberts, 28 Nev. 350,375, 82 P. 100.

The shooting was done with a pistol. The appellant left the hotel shortly before the shooting, went to his house a short distance away, obtained a gun, and returned to the hotel. There is testimony given by the appellant from which the jury could have concluded that the pistol was concealed on his person just prior to the shooting. How, however, it became proper for the jury to know, as a circumstance tending to show guilt of the crime charged that such concealment was unlawful, is not discernible.

The intent to kill under the evidence would be no more inferable from the concealment of the weapon than if appellant had returned to the hotel with the weapon in his hand. If anything, the latter would have more probative force as tending to show preparedness for an immediate assault, while the former would be more consonant with a desire to be prepared to resist an assault. The mere fact that appellant was carrying a concealed weapon, if it was a fact, and was not authorized by law to do so, under the circumstances, adds nothing of evidential value to his possession of the same, and the instruction was therefore inapplicable. But I do not think, in view of all the evidence and the verdict of the jury finding the appellant guilty of a lesser offense than the one charged in the information, that the giving of the instruction was prejudicial error.

No judgment shall be set aside, or a new trial granted, in any case on the ground of misdirection of the jury, unless in the opinion of the court to which application is made, after an examination of the entire case, it shall appear that the error complained of has resulted in a *Page 268 miscarriage of justice, or has actually prejudiced the defendant in respect to a substantial right. Section 7469, Rev. Laws; State v. Willberg, 45 Nev. 183, 200 P. 475.

I have examined the evidence in its entirety and am satisfied that it is ample to sustain the verdict of the jury. The only evidence tending in any way to show that the weapon was concealed was furnished by the appellant, and that is slight, even if the jury had believed the statement. He said:

"I get little gun right away. Gun fall on floor. When he going on top of me and going beat me over head I reach and get gun. I got overalls. I no got pants, so gun fall. So when he beat me over head I take gun and put it about his leg."

It does not necessarily follow from his testimony, even if believed, that the gun was concealed. The state's witness, Hill, who saw appellant on his return to the hotel and at the door immediately before the encounter, testified that he had the gun in his hand. As it is apparent from the verdict that the jury disbelieved appellant's version of the affair in reference to his claim of self-defense, it is highly probable that neither his testimony about how he had the gun on his person, or the instruction concerning it, affected their verdict. *Page 269